SANDRA L LEHR, Complainant
THE SALVATION ARMY, Respondent
An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the administrative law judge. Based on its review, the commission makes the following:
1. The respondent, Salvation Army, (hereinafter "respondent") is an international Christian organization that provides social services. The respondent runs a family shelter for the homeless, located at 630 East Washington Avenue in Madison, Wisconsin. Major Paul Moore (hereinafter "Moore") is the respondent's Dane County Coordinator, overseeing all of the respondent's activities in Dane County, including its social work efforts, its shelters and its emergency services. Moore also serves as the Madison Temple Corps Officer, overseeing the congregational aspects of the Salvation Army in Dane County. Wesley McKenzie (hereinafter "McKenzie") is the respondent's human resources director for its Wisconsin & Upper Michigan Divisional Headquarters. McKenzie provides human resource services to the respondent's family shelter. His office is located in Milwaukee, Wisconsin.
2. The complainant, Sandra Lehr, (hereinafter "Lehr") is an individual with a disability as defined by the Wisconsin Fair Employment Act. She suffers from Type 1 Diabetes Mellitus and is insulin-dependent. Lehr lost her eyesight in the early 1970's and has a prosthetic leg below her right knee. Lehr also has advanced coronary artery disease.
3. As of November 18, 2009, the second day of hearing in this matter, Lehr had lived alone in a 2-bedroom house for seventeen years. She does her own house cleaning and laundry, using the stairs in her house to reach the basement where her washer and dryer are located. Lehr performs some of the yard work at her home including weeding and some bush trimming. She also cares for her two cats.
4. Lehr began working for the respondent's family shelter in January of 1994 as a laundry worker. Her schedule was Monday, Wednesday and Friday mornings from 8:00 a.m. to noon. By 2007, Lehr was working from 7:00 a.m. to 3:30 p.m. with an unpaid half-hour lunch break on Mondays, Wednesdays and Fridays. In 2007 and early 2008 Lehr's direct supervisor was Peter McDonald (hereinafter "McDonald"), the maintenance, property and safety manager for the respondent's six Madison facilities. Until September of 2009, McDonald's office was located at the family shelter.
5. When Lehr is working she walks to the time clock on the first floor to punch in upon her arrival at the family shelter's main entrance on the first floor of the building. She then walks through the building to the stairway where she opens the closed door to the staircase, walks up the staircase to the second floor and opens the closed door at the top to enter the hallway outside of the laundry area. The linen room is located across the hallway from the room where the commercial washer and dryer are located. Lehr locates the dirty linens in bins in the hallway just outside of the laundry area, sorts them, walks through the family shelter's clients' laundry room and carries them into an adjoining laundry room with a commercial washer and dryer that she uses for the linens. Lehr places the wash into the washer and starts it. She then sits on a chair in the linen room while waiting for the wash cycle to finish, after which, she pulls the wet load out of the washer and places it in the dryer. She also cleans the 24-inch square lint trap screen located on the lower part of the dryer near floor level before starting each load in the dryer. At the end of the dry cycle, Lehr folds the linens on a table before placing the folded linens in the linen closet across the hallway. Lehr repeats this process approximately ten times during a shift. On occasion when she has an overload of linens, Lehr uses the elevator at the family shelter to transfer a load of dirty linens to a washing machine downstairs.
6. From the date that Lehr started her employment at the family shelter until January 25, 2008, when she began a leave of absence for a back condition, the respondent was satisfied with her work performance.
7. Throughout her employment, the respondent has allowed Lehr to take rest breaks when she needs them and to break for a snack or a drink provided either by herself or by the respondent when necessary. Kimberly Manning (hereinafter "Manning"), the Assistant Housing Coordinator for the family shelter, and Katie Dahl (hereinafter "Dahl"), who performed human resources duties at the family shelter in 2007 and early 2008, (1) have voluntarily provided assistance to Lehr in checking her blood sugar levels with a machine called a "glucometer" and at times, accompanying her downstairs to the cafeteria. Manning and Dahl are also Lehr's social friends. Dahl assisted Lehr more with that procedure before Lehr first obtained a "talking glucometer" in approximately August of 2007. The first talking glucometer that Lehr used audibly informed her if her blood sugar level was high or low.
8. On the days when Lehr and Manning are both working, Manning typically checks on Lehr in the morning, brings her coffee, and is present while Lehr checks her blood sugar level. She also checks on her after lunch and again at the end of the day when she has time. On occasion, a Salvation Army client advises Manning to check on Lehr if she does not look well. Prior to Lehr going on a leave of absence from work in January of 2008, approximately once a month Manning would find Lehr drowsing in her chair and would shake her so that they could check her blood sugar level. Manning's office, located approximately 100 feet away from the laundry area, is the closest one to where Lehr works. In 2007 and early 2008 Manning worked at the shelter on Mondays through Thursdays. Dahl's office was located on the first floor of the shelter. Once or twice, Manning found Lehr in Manning's work area, way down the hall from the laundry area, confused regarding her whereabouts.
9. In addition to allowing Manning and Dahl to assist Lehr, the respondent has modified the equipment Lehr uses in her job duties to accommodate her sight restrictions by marking the buttons on the washer and dryer with tape. Maintenance department employees typically collect laundry on both the first and second floors for Lehr and deliver it to the laundry area. When working, Lehr carries a cell phone that contains pre-programmed phone numbers of her
co-workers, whose numbers she can dial with a voice command.
10. Dr. Paul Reber, Lehr's endocrinologist, has treated Lehr for her diabetes since 2002. He is board certified in endocrinology and metabolism. Throughout 2007, Dr. Reber was working with Lehr to have her count the carbohydrates she consumed and match the amount of insulin she took to her carbohydrate consumption. Lehr struggled with that approach, resulting in glucose fluctuation. It is important for an individual with diabetes to manage low blood sugar because if the individual does not recognize when he or she has low blood sugar it can result in disorientation and loss of consciousness. In Dr. Reber's opinion, a blood sugar level of 45 or below is "very concerning."
11. As a result of Lehr's struggles with insulin dosage, during the summer and fall of 2007 she experienced a series of low blood sugar episodes while she was working.
12. Over the years of Lehr's employment at the family shelter through late January of 2008, McDonald heard occasionally from shelter employees that Lehr had been in a hallway, disoriented and unsure of where she was going and on other occasions that she appeared to be incoherent in the linen room. However; the only such episode involving Lehr that McDonald personally observed occurred early during her employment at the family shelter when paramedics arrived, contained her, and administered a shot to her.
13. On July 18, 2007, McDonald sent an email to Major Moore reporting that Lehr had been experiencing difficulty with her blood sugar counts. He stated that Manning had "found her in a confused state of mind" on both July 16 and July 18, 2007 when Lehr did not "know where in the building she was." Manning tested Lehr's blood sugar and obtained a reading of 40. McDonald wrote, "The health
& safety issues are obvious." He added, "There are only 2 employees that assist Sandy but are not always here at the same hour, don't work in the same area and somedays [sic] not even in the building." He requested Major Moore's guidance.
14. On July 24, 2007, Lehr visited an emergency room, complaining of chronic shortness of breath and upper back pain. After she was admitted to the hospital she underwent a gastric emptying study that revealed she had a significant delay in gastric emptying, called "gastroparesis." Food that Lehr had consumed was staying in her stomach much too long before reaching her small intestine where her body could absorb nutrients including glucose, contributing to a condition of unpredictable blood sugar levels.
15. By August of 2007, Lehr's general internal medicine physician, Dr. Marjorie Dimaggio, adjusted her medication for treating the gastroparesis. By October 1, 2007, Lehr was experiencing good results from that medication.
16. In Lehr's performance evaluation that McDonald prepared on September 7, 2007, McDonald observed that he admired Lehr's "work ethic." He also commented, however, "I am always concerned with sugar levels and your being in an area without other staff near bye. [sic]."
17. On September 11, 2007, Dahl emailed Major Moore and reported that Lehr had experienced another low blood sugar episode the day before. Dahl noted that she had called 911 because Lehr was falling asleep. She reported that when the paramedics arrived and tested Lehr's blood sugar level it was 24 and that the lead paramedic stated that Lehr could not continue working that day. Dahl added that the paramedic also stated,
[H]e has had patients that low who were in a coma or dead. I now believe that is unsafe for us to have Sandy working on the 2nd floor. She could be having a low like this and fall down the stairs, etc. I feel that we should contact Wesley about this.
A short time later Dahl forwarded her email to McKenzie.
18. On October 1, 2007, when Dr. Reber saw Lehr, he noted, "Occasional hypoglycemia. Was given incorrect insulin for 2 months. Given Novolin instead of Novolog." Novolog is a much faster acting type of insulin than Novolin. Taking the wrong insulin for a two-month period resulted in Lehr experiencing unpredictable blood sugar levels, causing her to have low levels when she did not expect them and high levels when she did not expect them. Once Dr. Reber realized that Lehr was receiving the wrong insulin, it took from several weeks to a few months for her body to adjust to the new insulin.
19. On October 1, 2007, the respondent gave a letter signed by McKenzie along with a copy of the laundry worker job description to Lehr to take to her physician. The letter asked Lehr to have her physician answer in writing the following questions related to Lehr's ability to safely perform her job duties:
(1) Is Ms. Lehr's tendency to pass out and fall on the job the result of a medical condition?
(2) What is that medical condition?
(3) How long have you treated Ms. Lehr with regard to this condition?
(4) When did this condition commence and what is its expected duration?
(5) Please describe with specificity any physical restrictions that result from this condition.
(6) Please review Ms. Lehr's position description (copy attached).2(2) As reflected in the position description, the essential functions of Ms. Lehr's job include putting linens in automatic washer and dryer machines and putting laundry away. Ms. Lehr must safely perform the functions of her job without supervision. In fact, Ms. Lehr typically works alone and little contact with other employees. Do you believe that Ms. Lehr can safely perform these essential functions of this job, with our without reasonable accommodation?
(7) If you believe that Ms. Lehr needs some form of reasonable accommodation to perform the essential functions of her position as a Laundry Worker, please describe it with specificity.
(8) Ms. Lehr has lost consciousness and fallen down several times while at work. Did this result from the condition noted above, if any?
(9) What is the likelihood that Ms. Lehr will pass out and/or fall again at work in the future?
(10) What, if anything, can Ms. Lehr and/or her employer do to prevent future incidents of passing out and/or falling at work?
McKenzie requested that Lehr ask her physician to respond to the questions by no later than October 16, 2007. McKenzie wrote the letter with the questions for Lehr's physician because Lehr continued to experience incidents of low blood sugar and the respondent wanted to ensure that Lehr could safely continue working. Lehr gave McKenzie's letter to Dr. Dimaggio for a response rather than giving it to Dr. Reber.
20. McKenzie received Dr. Dimaggio's handwritten responses to the questions he posed on October 16, 2007. Dr. DiMaggio noted that Lehr's "tendency to pass out and fall on the job" resulted from her medical condition of Type I Diabetes, that she was diagnosed with that condition in 1956 at age 8 and that the condition is "expected to last the rest of her life." She wrote that Lehr "is legally blind and has lost the lower part of her right leg." In response to the question about Lehr's ability to safely perform her job duties she stated, "She has been able to perform those duties for the last 15 yrs. (The last 5 years using her artificial leg)." Dr. Dimaggio wrote that Lehr did not need any reasonable accommodation to perform her job functions. She noted that her loss of consciousness and falling down at work "most likely" resulted from low blood sugar. Regarding the likelihood that Lehr would "pass out and/or fall again at work in the future," she wrote,
It was discovered that the patient was given the wrong type of Insulin by her pharmacy. That played a large part in her frequent low blood sugars. This was corrected 2 weeks ago and she has had few low blood sugars since.
Finally, regarding the request for suggestions to prevent future episodes of unconsciousness and falling down at work Dr. Dimaggio wrote,
Continue to allow her to bring her new meter (a talking one), food & her phone to her work area. I discussed the patient's plan for a low blood sugar. She carries food with her that can quickly get her blood sugars up and has a mobile phone with voice recognition of numbers of co-workers w/co-workers programmed in so she can call for help if she needs it.
21. Based on his reading of Dr. Dimaggio's responses to the questions, McKenzie decided that Lehr could remain at work. McKenzie sent an email to Moore and Dahl stating,
It appears that Lehr's doctor is fine with Sandra working in her current position and under the current circumstances. S/he had addressed the issues with Sandra that led to the workplace incidents and seems satisfied that she will be okay. So at this time, we must allow her to continue with her duties as we have. It is a good idea to have any staff that can do so regularly check on her when she is working.
22. After October 16, 2007, McKenzie heard from Moore, McDonald, Dahl and Manning that Lehr was continuing to experience incidents of low blood sugar at work.
23. In November of 2007, Dr. Reber placed Lehr on a new insulin regime that she was still using as of the dates of the hearing in this matter. The new regime, in addition to getting Lehr's gastroparesis under control and her body adjusting to the correct insulin, resulted in Lehr having much better control of her blood sugar levels. Currently, Lehr takes two forms of insulin to manage her diabetes: a
long-acting basal insulin that works over a 24-hour period and a short-acting insulin to cover the carbohydrates that she consumes. She takes a fixed dose of insulin with each meal and adds or subtracts insulin when necessary, depending upon her blood sugar level. Lehr monitors her blood sugar by pricking her finger with a lancet three to four times per day or when she does not feel well, placing the blood on a strip and inserting the strip into her talking glucometer to obtain a reading of her blood sugar level. The glucometer registers the date and the time of the test. It is possible for a blind individual to obtain a false low reading when there is an insufficient amount of blood on the strip, thus reflecting a false hypoglycemic event. The glucometer can also register a false high reading. The glucometer stores the information regarding the blood sugar level readings that can be downloaded into a computer program at Lehr's diabetes nurse specialist's office.
24. Lehr began a personal leave of absence on January 25, 2008, because she was planning to undergo back surgery.
25. In February of 2008, Lehr obtained a more advanced talking glucometer that, unlike her previous glucometers, provided numeric information to her about her glucose level when she tested it. After she began using new talking glucometer, Lehr's control over her blood sugar levels continued to improve.
26. On April 18, 2008, Lehr's neurosurgeon, Dr. Todd Trier, released her to work as of May 19, 2008 with no limitations.
27. By May of 2008, Lehr was experiencing success in managing her blood sugars. She had learned to recognize the symptoms of low blood sugars and to manage her carbohydrates.
28. On May 12, 2008, Dahl emailed McKenzie about Lehr, stating,
I just talked to Sandy and she has approval from her doctor to come back to work on 5/19/2008. She is supposed to get a new leg sometime this week. They discovered the old leg was causing blisters on her stump. She said she is planning on being here 5/19/2008 unless she gets run over by a truck.
29. On May 16, 2008 McKenzie, Moore and Captain Von Vandiver (hereinafter "Vandiver"), McKenzie's supervisor, decided that they were not going to allow Lehr to return to work on May 19, 2008. They were concerned about her ability to safely perform her job duties based on the numerous times she had experienced incidents of low blood sugar at work, causing her to be disoriented, uncertain of her surroundings and in need of help that she could not provide to herself. Moore's perspective regarding Lehr's medical situation was influenced by the fact that he is diabetic. Moore was insulin-dependent during a three-year period and used a glucometer until he underwent bariatric surgery. Moore has experienced symptoms of low blood sugar including disorientation. On one occasion in approximately October of 2007 he had observed Lehr walking toward a wall in the family shelter and appearing to be disoriented. He assisted her in finding the dining room. That fall Moore heard concerns from McDonald, Dahl, Manning and Barbara Lindsey, the family shelter's director of social services at that time, about Lehr's blood sugar levels. Moore was unaware in the fall of 2007 that Lehr had recently received the wrong kind of insulin over a two-month period.
30. McKenzie, Moore and Vandiver determined that they wanted Lehr to undergo a medical evaluation. They arranged with Medical Evaluations, Inc., a vendor that facilitates the arrangements for medical evaluations, to refer Lehr to Dr. Michael Borkowski3(3) so that he could provide a medical opinion regarding Lehr's ability to return to work.
31. In late May of 2008, the respondent requested that Lehr sign an authorization for release of her medical records to McKenzie so that they could "be used in connection with a fitness for duty evaluation." McKenzie explained to Lehr that the respondent needed her to release her medical records for its medical expert to review.
32. Before Lehr agreed to sign the authorization, she called McKenzie to ask why she needed to do so. McKenzie informed her that the respondent had some concerns about her incidents of low blood sugar and that therefore she needed to have an independent medical evaluation to determine whether she could return to work safely.
33. Lehr signed the authorization for the release of her medical records on June 6, 2008. On June 23, 2008, the respondent's attorney, Eric Hobbs, requested copies of Lehr's medical records from her medical clinic.
34. Lehr underwent the independent medical fitness for duty evaluation with Dr. Borkowski on June 25, 2008. Dr. Borkowski, who is board certified in occupational medicine, is employed at the VA Medical Center in Milwaukee, Wisconsin with duties regarding employee health, compensation and disability. He also has his own consulting practice, conducting independent medical and return to work evaluations for various employers. At the time that Dr. Borkowski evaluated Lehr, he had a copy of her position description from the respondent as well as a more specific explanation of her job duties from McDonald and a fitness for duty report from the neurosurgeon who performed Lehr's back surgery, Dr. Trier. During the evaluation, Dr. Borkowski questioned Lehr about her medical and occupational history and performed a physical examination on her. On the day that Dr. Borkowski examined Lehr he had not yet received her medical records. Although the instructions Dr. Borkowski received from Attorney Hobbs the day before he evaluated Lehr requested that he wait until he received and reviewed her medical records from her treating physicians, Dr. Borkowski issued his report regarding Lehr on July 9, 2008, prior to his receipt of Lehr's medical records.
35. Dr. Borkowski sent the July 9, 2008 report detailing his findings from Lehr's independent medical evaluation to Attorney Hobbs. He noted that Lehr reported having "an episode of low blood sugar" "a couple of years ago" and also "that she has not had an episode of hypoglycemia now that she has a glucometer that gives her blood sugar results audibly." He also stated in his summary that she noted "her last passing-out, or near passing-out, spell was approximately two years ago." Dr. Borkowski also observed, "The majority of the information provided has been by Ms. Lehr." He concluded that Lehr could return to work.
36. When McKenzie read Dr. Borkowski's report in July of 2008, he was struck by Dr. Borkowski's comment that Lehr had informed him that "a couple of years ago, she had an episode of low blood sugar." On July 21, 2008 Attorney Hobbs sent copies of additional medical records for Lehr to Medical Evaluations, requesting that Dr. Borkowski review them and either affirm his opinion of July 9, 2008 or amend it. On July 23, 2008 Attorney Hobbs sent another letter to Medical Evaluations, requesting that it transmit the following information to Dr. Borkowski for his consideration:
On three occasions prior to her present leave of absence, Ms. Lehr had incidents at work in which she appeared to be losing consciousness or was completely disoriented. On the last of those three occasions, on September 11, 2007, the Salvation Army staff called 911, and she was transported by ambulance for care. Copies of two email messages regarding those incidents are enclosed for Dr. Borkowski's review.
The Army's understanding is that all three incidents were related to Ms. Lehr's diabetes and her failure regularly to monitor her blood sugar. The fact of these incidents, it seems to us, contradicts her reported representations to Dr. Borkowski that she had suffered no diabetes-related incident in years.
37. Meanwhile, on July 24, 2008, Sarah Kruger (hereinafter "Kruger"), Lehr's diabetes nurse specialist, who is an advanced practice nurse practitioner, sent an email to Dr. Dimaggio advising her that she had ordered a hemoglobin A1C blood test for Lehr and asking her to notify Lehr of the results. Kruger also wrote, "Whe [sic] her A1C was under 7.0%, we were fighting many serious lows, so I think a reasonable goal is an A1C of 7-7.5%."
38. On July 29, 2008, Dr. Dimaggio sent a letter to Lehr reflecting her review of Lehr's diabetes tests from October 16, 2007 through July 24, 2008. She noted the following hemoglobin A1C values for Lehr:
7/24/08 7.9
2/5/08 7.4
10/16/07 6.9
Dr. Dimaggio then observed, in spite of Kruger's comment on July 24, 2008 about a reasonable goal of 7-7.5% A1C value for Lehr, "The goal recommended by the American Diabetes Association is 6.9 or less. Therefore, improvement is needed. I recommend that you: Make an appointment with an endocrinologist to discuss further management options." She instructed Lehr to repeat the hemoglobin A1C blood test in 3 months.
39. As Lehr's endocrinologist, Dr. Reber monitors her hemoglobin A1C level, a measurement of a patient's average blood sugar over the preceding 3 to 4 months. It provides a long-term indicator of glucose control. National organizations including the American Diabetes Association have established an optimal A1C target of 7. However, more recently, there is growing recognition that an A1C target of 7 is not appropriate for all diabetes patients. In Dr. Reber's opinion, that is not an appropriate target number for Lehr because of her risk of hypoglycemia and her history of poor hypoglycemic awareness. He believes that an A1C level under 8 is satisfactory for her and that the minimum level for her depends upon how many lows she is experiencing. In Dr. Reber's opinion, Lehr's hemoglobin A1C Value of 7.9 on July 24, 2008 was within the acceptable range for Lehr based on the current guidelines in her case. In his view, Dr. Dimaggio's letter to Lehr dated July 29, 2008 reflected a misunderstanding of the current guidelines for hemoglobin A1C values.
40. After receiving the new information from Attorney Hobbs through Medical Evaluations, Dr. Borkowski issued a supplemental report regarding Lehr on August 11, 2008. Between July 9, 2008, when he wrote his first report regarding Lehr, and August 11, 2008, Dr. Borkowski conducted a thorough review of her medical records, the majority of which he did not have available at the time he conducted the independent medical fitness for duty evaluation. He discovered that the records reflected significant drops in Lehr's blood sugar levels in 2004 and 2005. He was concerned about Dr. Dimaggio's May 17, 2007 notation that when Lehr is at work, "Sometimes she is feeling funny, but does not know what her blood sugar is and does not want to bother somebody to come down and check it." Moreover, he found no indication in the records that the clinicians knew about the low blood sugar episodes that she had experienced at work in the summer and fall of 2007. The blood sugar level range of 100 to 150 that Lehr had reported to Dr. Borkowski when he evaluated her on June 25, 2008 was much narrower than the range reflected in her medical records over a period of several years including 2008. He observed several readings in her medical records below 50 or 40. Dr. Borkowski perceived that Lehr had been inaccurate by failing to report these incidents to both him and to her clinicians. He also concluded that she was hypoglycemic unaware based on his review of her medical records that included documentation from Krueger, Dr. Reber and Dr. Dimaggio supporting that conclusion. Finally, based on his review of Lehr's medical records, Dr. Borkowski determined that there was a lack of coordination and communication between Lehr's clinicians.
41. In Dr. Borkowski's supplemental report dated August 11, 2008, he stated that he telephoned Lehr on August 1, 2008 and that she informed him that she had not seen either Dr. Reber or Dr. DiMaggio "since probably 2007." Dr. Borkowski informed Lehr that she should see both of those physicians because he needed information from them. He explained in the report that they needed to provide "updated medical fitness opinions," noting that the Salvation Army "has reported three episodes of near loss of consciousness, presumably related to episodes of hypoglycemia in the workplace. Ms. Lehr's employer maintains a concern for Ms. Lehr's safety at work." Dr. Borkowski concluded his report with the following opinion:
Based on my review of the medical records and the concern generated from her employer, the Salvation Army, in contrast to the information provided by Ms. Lehr, it is my medical opinion that Ms. Lehr is not fit to resume her work activities with the Salvation Army pending outcome form updated evaluations from Dr. Reber and Dr. Dimaggio [sic]. Both physicians should provide input regarding her periods of hypoglycemia, her safety to perform work activities and her compliance with and her ability to utilize her glucometer.
Dr. Borkowski's specific job safety concerns for Lehr were based on the unreliability of other employees being nearby when she experienced incapacitation and the fact that she had to climb stairs during her work day, creating a potential hazard for her during a low blood sugar episode.
42. Pursuant to Dr. Borkowski's instruction to her during their telephone conversation on August 1, 2008, Lehr visited Dr. Dimaggio on August 4, 2008 and Dr. Reber on August 7, 2008. In his notes regarding his visit with Lehr, Dr. Reber indicated that he had reviewed her blood sugars and that they were "Overall okay." He also noted that she had not yet returned to work after back surgery. He added, "Sandra wants to return, and has been medically cleared, but Salvation Army has balked." He wrote that Lehr would follow up with him in six months. On August 12, 2008, Dr. Reber wrote a note for Lehr to take to work that stated,
Sandra Lehr is a patient of mine with diabetes mellitus type 1. She had back surgery earlier this year and had been off of work. She is now reasonably recovered from this and should be able to return to any duties that she had done prior to her surgery.
43. On August 14, 2008, Dr. Dimaggio wrote a note for Lehr to deliver to the respondent stating, "I examined Sandra Lehr on 8/4/08 and found her back to her functional baseline and believe she can return to work without restrictions immediately. Please feel free to contact me with any questions."
44. Lehr wrote to McKenzie on August 28, 2008, inquiring about why the respondent had not yet allowed her to return to work. She included a series of requests in her letter including a request that the respondent provide her with a summary of its concerns regarding her return to work and copies of both of Dr. Borkowski's medical reports regarding her.
45. McKenzie sent Lehr a copy of her reports from Dr. Borkowski on October 10, 2008. He included a memo to Lehr with the reports that stated in part,
As I understand, [Dr. Borkowski] is still waiting on actual updated evaluations (not just a note that you can return to work) from your providers, as he stated to you that he needed. His final recommendation is pending receipt of those reports.
46. On October 16, 2008, Attorney Hobbs sent a letter to Medical Evaluations for Dr. Borkowski, forwarding Lehr's updated medical records along with Dr. Dimaggio's and Dr. Reber's August 2008 opinions that Lehr was fit to return to work. Attorney Hobbs requested that Dr. Borkowski review the additional medical records and answer "to a reasonable degree of medical certainty" the following questions:
1. Did Dr. Reber adequately address Ms. Lehr's 'hypoglycemia, her safety to perform work activities and her compliance with and her ability to utilize her glucometer' so that you can provide an opinion as to whether Ms. Lehr is able to return safely and effectively to her duties at the Salvation Army? If so, what is your opinion? If no, please identify what additional you need from Dr. Reber.
2. Did Dr. Dimaggio adequately address Ms. Lehr's 'hypoglycemia, her safety to perform work activities and her compliance with and her ability to utilize her glucometer' so that you can provide an opinion as to whether Ms. Lehr is able to return safely and effectively to her duties at the Salvation Army? If so, what is your opinion? If no, please identify what additional you need from Dr. Dimaggio.
47. On November 4, 2008, Dr. Borkowski sent another Supplemental Report regarding Lehr to McKenzie. In that report he summarized information from Lehr's medical records he had reviewed, noting that her hemoglobin A1C Value was 7.9 on July 25, 2008. His summary included Dr. Dimaggio's July 29, 2008 letter to Lehr, recommending that she see an endocrinologist and the medical records from Lehr's visits to Dr. DiMaggio and Dr. Reber in August of 2008, after Dr. Borkowski issued his first supplemental report on August 11, 2011, instructing Lehr to visit both of those physicians. In the supplemental report dated November 4, 2008, Dr. Borkowski wrote the following assessment:
Ms. Lehr has provided documentation from Dr. Reber and Dr. DiMaggio indicating in their opinions that she is fit to resume previously performed work activities. Her doctors, however, have not been provided with documentation regarding her episodes of hypoglycemia; therefore, are basing opinions on Ms. Lehr's report and not the concerns that were generated by the employer. The recently provided medical records support poorly controlled diabetes as evidenced by her elevated hemoglobin A1Cs. However, as her Nurse Practitioner has tried to optimize control, she has had, admittedly, episodes of hypoglycemia. This would support the employer's concern that her diabetic control places her at risk for injury to herself.
Dr. Borkowski recommended that both Dr. Reber and Dr. Dimaggio receive documentation from the Salvation Army and/or Dr. Borkowski's three reports "before providing an opinion regarding fitness for work and addressing the issues" that Dr. Borkowski had noted. He was concerned that in releasing Lehr to go back to work, neither of her physicians had taken into account the low blood sugar episodes that she had previously experienced at work. He reiterated, "Again, these include Ms. Lehr's future risk regarding hypoglycemia, her ability to safely perform work activities, and her compliance and ability to use her glucometer." Specifically, Dr. Borkowski stated that both of Lehr's physicians needed "to review the employer's safety concerns for [Lehr] as noted in this and my prior report before issuing an opinion on fitness for work." He added,
The medical records do not provide evidence that her care and/or fitness for work determinations have been coordinated by her providers. The nurse practitioner in this case is outlining hypoglycemic events consistent with the employer's concerns while her other provider(s) is/are pushing for tighter control of her diabetes.
Finally, Dr. Borkowski offered to speak directly with Dr. Dimaggio and Dr. Reber.
48. Dr. Borkowski and Dr. Reber had a brief telephone conversation regarding Lehr in late November of 2008. Dr. Borkowski commented that he had outlined his concerns in his reports and that it was necessary for Dr. Reber, who had not received them, to read them. Dr. Reber stated that he was allowing Lehr to trend upwards with her blood sugar levels because of her hypoglycemic unawareness. Dr. Borkowski responded that he understood that Lehr had initiated legal action against the respondent and that therefore, he did not know if they could talk further about Lehr's situation.
49. Although Attorney Hobbs sent a letter to Medical Evaluations on December 3, 2008 with two authorizations signed by Lehr, authorizing Dr. Borkowski to speak to both Dr. Reber and Dr. Dimaggio about her medical conditions, Dr. Borkowski and Dr. Reber did not speak with each other again after their late November 2008 telephone call.
50. Dr. Borkowski issued a third supplemental report on January 23, 2009, regarding Lehr. He explained that he had made efforts to speak with both Dr. Dimaggio and Dr. Reber in January of 2009 to medically verify that Lehr was "fit for duty" and that they had addressed the concerns he had raised in his previous reports, but had been unsuccessful in his efforts to speak with either Dr. Dimaggio or Dr. Reber. Although Dr. Reber received a message on January 5, 2009 that Dr. Borkowski had called him, he never returned his call because he received a telephone call asking him to refrain from speaking to Dr. Borkowski due to pending legal proceedings. Dr. Borkowski also received a call from Dr. Dimaggio's assistant directing him to contact her clinic's legal department if he had questions. Dr. Borkowski did not contact the clinic's legal department because the respondent had not instructed him to do so.
51. In his January 23, 2009 supplemental report regarding Lehr, Dr. Borkowski continued,
Review of the medical records and the laboratory investigations from 2002 to 2008 demonstrate marginally controlled diabetes. Ms. Lehr vacillates between marginally controlled blood sugars, where her blood sugars climb, to those of hypoglycemic and unsafe levels, requiring the aid and assistance of others.
The medical records indicate that there are two clinicians plus a nurse practitioner involved in the care and manipulation of Ms. Lehr's medication and management of her diabetes. What resonates between all of these medial records is the lack of treatment and management coordination between the clinicians. It is difficult to discern from the medical records which clinician has assumed the responsibility of assessing her fitness for duty. Previous reports authored by this examiner annotate significant concerns of a direct threat of significant harm to Ms. Lehr's health and safety in the workplace.
Dr. Borkowski concluded that, because he did not have medical documentation and evidence to support Lehr's fitness for work, his medical opinion continued to be that she was unfit to perform her job duties at the respondent.
52. Although Dr. Borkowski did not specifically comment in his reports about a medical note that he reviewed from Lehr's cardiologist, he was concerned that neither Dr. Dimaggio nor Dr. Reber commented on Lehr experiencing shortness of breath. She had visited her cardiologist on January 22, 2008, complaining of shortness of breath while walking or shopping.
53. On April 3, 2009, Dr. Reber wrote a letter to the complainant's attorney, Tamara Packard, in response to questions she had posed to him in a letter on March 24, 2009. At the time he wrote the letter, Dr. Reber had not seen Lehr for approximately eight months. Ideally, Dr. Reber prefers to see Lehr every six months and have his diabetes nurse specialist see her every six months three months after Dr. Reber sees her, so that Lehr has endocrinology oversight every three months. He did not confer with either Kruger or Dr. Dimaggio when he wrote the letter to Attorney Packard. In answering Attorney Packard's questions, Dr. Reber observed:
#1. Due to Sandy's poor hypoglycemic awareness, it is standard practice to alter glucose control goals. Consequently I concur with Sarah Kruger's clinical recommendations of a target hemoglobin A1C of 7.0-7.5%.
#2. Any individual taking insulin runs the potential risk of hypoglycemia. This risk is higher in individuals who do not sense the early warning signs of hypoglycemia. To compensate for this, Sandy checks her blood sugars frequently and we have established a higher than average acceptable glucose range. In my medical opinion, these maneuvers decrease Sandy's risk of harm to herself to an acceptable level.
#3. In order to allow Sandy this reduced risk of harm, she should be allowed to check her blood glucose ad lib., she should have free access to carbohydrates at all times, and she should be allowed short unscheduled breaks if needed to maintain her glucose at a safe level.
#4. I do not believe that Sandy has been at significant risk of harm to herself or others in the workplace between May 19, 2008 and today, assuming that the accommodations listed in #3 above were in place.
Although Dr. Reber wrote that Lehr has "poor hypoglycemic awareness," he intended that comment to be a historic reference rather than a comment on her ability to control her blood sugars in April of 2009. At the time he wrote the letter he believed that Lehr had mastered the ability to detect her symptom of low blood sugar and that she was not at significant risk.
54. On June 2, 2009, Attorney Packard sent a letter on behalf of Lehr to Attorney Hobbs along with a copy of Dr. Reber's April 3, 2009 letter, reflecting that Lehr could safely return to work dating back to May 19, 2008. Attorney Hobbs provided Dr. Reber's report to McKenzie in June of 2009. McKenzie shortly provided a copy of that report to Dr. Borkowski.
55. On June 30, 2009, Dr. Borkowski issued a fourth supplemental report regarding Lehr in response to a request by Attorney Hobbs to review Dr. Reber's letter dated April 3, 2009. Attorney Hobbs asked Dr. Borkowski to determine whether Dr. Reber's letter provided the information that he had requested in his earlier reports and to determine whether Lehr could safely return to her laundry worker position. Dr. Borkowski noted that he did not have the questions posed by Attorney Packard to which Dr. Reber responded. Following his review of Dr. Reber's April 3, 2009 letter, Dr. Borkowski opined that Lehr was still unfit to perform her work duties at the respondent. He cited Dr. Reber's comment that Lehr has "poor hypoglycemic awareness," adding,
This is the area of concern that the employer has and this is what has been demonstrated in the workplace. It is Ms. Lehr's poor hypoglycemia awareness that places her at an acute risk for significant harm to self, in comparison to most individuals with diabetes.
Dr. Borkowski observed that the respondent had accommodated Lehr in the past as Dr. Reber suggested in his responses to questions 2 and 3, but that despite those accommodations, Lehr "has failed to maintain her blood sugar in safe levels." Dr. Borkowski also stated, "Dr. Reber does not describe what medical intervention has occurred since the time Lehr has not been at work and to the present timeframe to indicate that she is safe to reengage in work activities." Additionally, Dr. Borkowski expressed concern that Dr. Reber had not described the medical plan currently in place to protect Lehr from future hypoglycemic episodes. He noted that Dr. Reber had not specifically addressed the respondent's concerns regarding Lehr and that it was not clear which physician was the physician of record for the treatment of Lehr's diabetes and communication of workplace accommodations.
56. Although Dr. Reber saw Dr. Borkowski's initial July 9, 2008 report regarding Lehr prior to writing his April 3, 2009 letter, he never saw any of the supplemental reports until a week or so before Dr. Reber testified on October 23, 2009, the first day of hearing in this matter. Additionally, Dr. Reber never spoke to anyone at the respondent about its safety concerns regarding Lehr.
57. As of October 23, 2009, when Dr. Reber testified, he believed that the interventions that occurred primarily in late 2007 enabled Lehr to better sense her episodes of low blood sugars and to respond to those episodes appropriately. Those interventions included Lehr receiving the correct insulin, the treatment of her gastroparesis, the change in her insulin dosage and her obtaining a more advanced talking glucometer in February of 2008. In Dr. Reber's opinion, to a reasonable degree of medical certainty, Lehr's employment as a laundry worker at the respondent's Madison shelter as of May 19, 2008 through October 23, 2009, did not pose a reasonable probability of substantial harm to herself or others.
58. As of October 23, 2009 when Dr. Borkowski testified at the first day of hearing in this matter, he still had not seen any information from Lehr's physicians acknowledging Lehr's low blood sugar episodes at work in conjunction with a treatment plan to safeguard against such episodes in the future.
59. As of the dates of the hearing in this matter, the respondent had not replaced Lehr with a permanent employee. It had someone cover her job duties in a temporary capacity.
60. As of November 18, 2009, the second day of hearing in this matter, the respondent had contacted Lehr and offered her to return to work the following Monday, November 23, 2009. Lehr accepted the offer.
61. Lehr's disability did not interfere with her ability to safely perform the job of laundry worker for the respondent.
Based on the above FINDINGS OF FACT the commission hereby makes the following:
1. That the complainant established by a preponderance of the evidence that the respondent discriminated against her in the terms and conditions of her employment in violation of the Wisconsin Fair Employment Act.
Based on the above FINDINGS OF FACT and CONCLUSIONS OF LAW the commission hereby issues the following:
1. That the respondent shall cease and desist from discriminating against the complainant because of her disability.
2. That the respondent shall make the complainant whole for all losses in pay and benefits the complainant suffered by reason of its unlawful conduct by paying the complainant the amount she would have earned as an employee had her employment not been suspended from May 19, 2008 through November 22, 2009, pursuant to the amounts agreed upon by the parties in the "Stipulation Regarding Damages" dated October 23, 2009. The back pay for the period shall be computed on a calendar quarterly basis with an offset for any interim earnings during each calendar quarter. Any unemployment compensation or welfare benefits received by the complainant during the above period shall not reduce the amount of back pay otherwise allowable, but shall be withheld by the respondent and paid to the Unemployment Compensation Reserve Fund or the applicable welfare agency. Additionally, the amount payable to the complainant after all statutory set-offs have been deducted shall be increased by interest at the rate of 12 percent simple. For each calendar quarter, interest on the net amount of back pay due (i.e., the amount of back pay due after set-off) shall be computed from the last day of each such calendar quarter to the day of payment. Pending any and all appeals from this Order, the total back pay will be the total of all such amounts.
3. That the respondent shall pay the complainant's reasonable attorney fees and costs associated with this matter.
4. That within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action taken to comply with the commission's Order. The compliance report shall be directed to the attention of Jenny Koepp, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stat. § § 111.395, 103.005(11) and (12).
Dated and mailed April 16, 2013
lehrsa . rrr : 164 : 5
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
The complainant's burden of proof in a disability discrimination case is to show that she has a disability within the meaning of the Wisconsin Fair Employment Act and that there was an adverse employment action based upon that disability. See Copus v. Village of Viola, ERD Case No. 8402007 (LIRC, Dec. 10, 1987). In this case, it is undisputed that the complainant, who is blind and has diabetes, is an individual with a disability. Further, it is undisputed that the complainant was involuntarily placed on an unpaid leave of absence for a year and a half as a result of her diabetes. Thus, the complainant has met her burden in this case.
The burden then shifts to the respondent to prove that the complainant's disability is reasonably related to her ability to adequately undertake the job-related responsibilities of her employment and, further, that no reasonable accommodation is available which will not pose a hardship on the respondent's business. Id. In other words, the respondent first must justify its alleged discrimination under the exception set forth in Wis. Stat. § 111.34(2). Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991). That exception provides:
111.34 Disability; exceptions and special cases.
(2)(a) . . . it is not employment discrimination because of disability to refuse to hire, employ, admit or license any individual, to bar or terminate from employment, membership or licensure any individual . . . if the disability is reasonably related to the individual's ability to adequately undertake the job-related responsibilities of that individual's employment, membership or licensure.
(b) In evaluating whether an individual with a disability can adequately undertake the job-related responsibilities of a particular job . . . the present and future safety of the individual, of the individual's coworkers and, if applicable, of the general public may be considered. However, this evaluation shall be made on an individual case-by-case basis . . . . (emphasis added).
The respondent has never argued that the complainant's disabilities rendered her unable to adequately perform her job. To the contrary, the record indicates that the complainant had been performing satisfactorily in the position for fourteen years prior to her suspension from employment, with only limited accommodations necessary. Thus, any finding that the complainant's disability was reasonably related to her ability to adequately perform the job would have to be made under Wis. Stat. § 111.34(2)(b), the portion of the statute which addresses an employee's ability to safely perform the job.
Where the evidence shows that the complainant has a present ability to physically accomplish the tasks which make up the job duties, the respondent must establish to a reasonable probability that, because of the complainant's physical condition, employment in the position would be hazardous to the health or safety of the complainant or to others. Bucyrus-Erie Co. v. ILHR Department, 90 Wis. 2d 408, 424, 280 N.W.2d 142 (1979). In resolving this question, the appropriate test is not whether the complainant suffers from diabetes or whether she may experience hypoglycemic episodes on the job, but whether the continued employment of the employee in her present position poses a reasonable probability of substantial harm. See, Alt v. Meriter Hospital, Inc., ERD Case No. 9202941 (LIRC March 27, 1996); Jansen v. Food Circus Supermarkets, 1 AD Cases 1305, 1309 (N.J. 1988).
The parties agree that the complainant can safely perform her job, as evidenced by the fact that the respondent has reinstated the complainant--whose health condition was unchanged between the initial date on which the suspension occurred and the date of the hearing--to her position as a laundry worker. While the evidence demonstrated that the complainant had experienced low blood sugar episodes at work, the complainant's endocrinologist opined that, as of the time period at issue, various interventions and adjustments had enabled her to respond to blood sugar variations more appropriately and that her continued employment would not present a significant risk of harm to the complainant or others. The recommendation of the medical expert retained by the respondent that the complainant not be returned to work centered around a belief that he lacked adequate information to make an assessment regarding the complainant's ability to perform the job safely and on reservations about whether the complainant's doctors had adequate information available to them when they indicated she could safely continue to work. Ultimately, once the respondent's medical expert received the information he believed he required, the respondent agreed to permit the complainant to return to work. Under the circumstances, the respondent has failed in its burden of establishing that the adverse action it took against the complainant was justified based upon a disability that was reasonably related to the complainant's ability to safely perform the job.
In her decision finding that the respondent did not violate the Wisconsin Fair Employment Act, the administrative law judge noted that the "traditional method" for analyzing a disability discrimination case does not fit the facts of this case. The administrative law judge reasoned that the respondent had a good faith belief that the complainant's disability constituted a safety risk and that its actions amounted to a reasonable attempt to evaluate the complainant's ability to safely return to work on a case-by-case basis. The administrative law judge went on to state that, although both parties proceeded in good faith, due to a series of miscommunications and communication gaps, an "unfortunate situation" resulted and that, given those issues, the respondent could not return the complainant to work because it was lacking the assurance it reasonably needed that she could do the job safely, even though the complainant proved that she could have safely returned to work on May 19, 2008.
The commission disagrees with this analysis. While the respondent may have proceeded in good faith, the statutory defense only applies where the employer establishes, as a matter of fact, that the employee cannot safely perform the functions of the job. The statute does not contain any "good faith" exception where discrimination has occurred; if an employer decides that an employee cannot safely perform his or her job because of a disability, and takes an adverse action against the employee as a result, the responsibility for having been incorrect in this assessment lies with the employer. Indeed, the commission has consistently held that the fact that an employer has made an employment decision in reliance on the opinion of a doctor does not protect it from a finding of discrimination. See, for example, Shea v. Chrysler Group LLC, ERD Case No. CR200501614 (LIRC Feb. 28, 2013); Lee v. Dane County Highway Department, ERD Case No. 9201823 (LIRC July 24, 1998), citing Bucyrus-Erie Co. v. ILHR Dept., 90 Wis. 2d 408, 423-424, 280 N.W.2d 142 (1979).
Because the respondent placed the complainant on an unpaid leave of absence based upon her disability, and because the statutory exception permitting it to do so does not apply, its actions are found to be in violation of the Wisconsin Fair Employment Act.
NOTE: The commission has not conferred with the administrative law judge about the demeanor of witnesses. The commission's reversal is not the result of a differing assessment of witness credibility. In fact, the commission has adopted the administrative law judge's factual findings in their entirety, with only very minor modifications. The commission reverses, not because of a factual disagreement, but because it believes that a reversal is warranted as a matter of law.
LAURIE R. MCCALLUM, Commissioner, (dissenting):
The majority decision effectively holds that, when an employer requires a fitness for duty exam based upon incidents reasonably implicating the ability of an employee to safely perform her job, and then utilizes the report of an IME, which is more well-informed and complete than that of the employee's treating physician, to continue the employee on leave, the employer has engaged in disability discrimination if, at some time in the future, this treating physician then renders a different and newly well-informed and complete opinion that the employee was able to safely perform her job at the time she was placed on leave.
Carrying the majority's approach to its logical extreme could mean that, even if there had been, for example, only one medical opinion proferred during the period of an involuntary leave, and this opinion stated that the employee could not safely perform her job, if a second opinion is then rendered at some time in the future, this second opinion could be the basis for a conclusion that the employer engaged in disability discrimination years earlier.
The practical effect of such a ruling could well be a reluctance by employers to remove employees from their duties, even if these employees have demonstrated unsafe behaviors at work, in order to avoid a finding of disability discrimination based upon a future medical report.
In my opinion, this result does not serve the interests of employees or employers, defies common sense, and subverts the goals of justice and finality inherent in the Wisconsin Fair Employment Act (WFEA).
Its effect in the present matter is that the Salvation Army (SA), despite engaging in extraordinary efforts to employ and to accommodate Lehr over a period of years, is now held liable for disability discrimination based upon a medical opinion communicated 17 months after SA first made the decision to continue Lehr on leave.
This is an employer which hired Lehr, knowing that she was diabetic, blind, and had an artificial limb, and continued over a period of many years to provide accommodations for her, including frequent lengthy leaves, and having staff, including management staff, monitor her frequently during the day to assure that her blood sugar levels were tested and within acceptable limits. Subsequently, she began to experience an increasing number of low blood sugar episodes at work, in which she was found to be confused and incoherent. During at least one of these episodes, the paramedics were called, and her blood sugar level was 24, dangerously low. As the ALJ found, the SA was reasonably justified in fearing for Lehr's continued health and safety in the workplace.
This is not the typical case of an employer who bases a decision to place an employee on an involuntary leave of absence upon a stereotype or preconception. Instead, the employer here based its decision on demonstrated conduct implicating significant safety issues.
Under Wis. Stat. § 111.34(2), it is not employment discrimination because of disability to refuse to employ any individual if the disability is reasonably related to the individual's ability to adequately undertake the job-related responsibilities of that individual's employment. And subsection (b) of that section provides that, "[i]n evaluating whether an individual with a disability can adequately undertake the job-related responsibilities of a particular job...the present and future safety of the individual...may be considered.
The commission recently considered a somewhat similar fact situation in Shea v. Chrysler Group LLC, ERD Case No. CR200501614 (LIRC Feb. 28, 2013). In its decision, the commission held that it is the trier of fact's role, when there is conflicting medical evidence, to determine which evidence is the more persuasive. In Shea, the commission examined the relative persuasiveness of two medical opinions given near the beginning of the complainant's involuntary leave. It is important to note that Shea, unlike Lehr, had apparently not been involved in any incidents at work implicating his safety, but, instead, Shea's employer based its decision not to return him to work after his medical leave based upon predictions and conjecture.
Similar circumstances governed in Lee v. Dane County Highway Department, ERD Case No. 9201823 (LIRC July 24, 1998). In Lee, the employee had been performing his job duties capably and safely immediately prior to his leave, and the medical opinions evaluated for relative persuasiveness by the commission consisted of opinions rendered near the beginning of the leave.
Here, SA's IME, Dr. Borkowski, after reviewing Lehr's extensive medical records, and discussing with SA the nature and timing of the various low blood sugar episodes she had experienced at work throughout 2007 and early 2008, stated that "it is my medical opinion that Ms. Lehr is not fit to resume her work activities."
During the entire period of Lehr's leave, neither her treating family physician Dr. Dimaggio, nor her treating endocrinologist Dr. Reber, ever indicated, nor was it stated in any of their medical records, that they were aware of Lehr's continuing low blood sugar episodes at work in late 2007 and early 2008, or that Lehr had achieved a satisfactory level of hypoglycemic awareness.
In fact, as late as April 3, 2009, Reber stated that Lehr "has poor hypoglycemic awareness." As the record established, this is the touchstone for determining whether a diabetic can function safely-without a realization that one is experiencing low blood sugar, one is unable to take steps to address the circumstance or seek help from others.
It was not until the first day of hearing that Reber indicated he was aware of Lehr's episodes at work during 2007/2008, and opined that Lehr's hypoglycemic awareness was satisfactory. Based upon this, the SA returned Lehr to the position it had been holding open for her since January 2008.
If, after receiving this well-informed, complete, and now persuasive opinion on the first day of hearing, respondent Salvation Army had continued Lehr on the involuntary leave of absence, then I would agree that, as of that date, SA would have been engaging in disability discrimination. But, to hold them liable for disability discrimination prior to that date, when the medical opinion that formed the basis for their action was the more persuasive one in existence at the time, flies in the face of reason.
Contrary to Lehr's counsel's argument, the IME did issue an opinion, based upon his examination of the patient, and the review of her medical records, that she was not fit to continue in her position. He only agreed to revisit his opinion if he were to obtain information from Lehr's treating physicians that her Hemoglobin A1C values were now within normal limits and she had achieved good hypoglycemic awareness. However, for whatever reason, even though Lehr and her physicians now claim that this was the situation all along, this was not included in their medical records or opinions, and this information was never provided to the IME or to SA prior to the first day of hearing.
It is not that the conflicting medical opinions with which SA was presented during Lehr's leave were equally well-informed and complete. To the contrary, the information SA and its IME received from Dimmagio and Reber during the period of leave either did not address Lehr's diabetes, was based upon incomplete or incorrect information from Lehr, or, as late as April 3, 2009, actually stated that Lehr was hypoglycemically unaware.
Consistent with the recent holding in Shea, supra., when there is conflicting medical evidence, it is up to the trier of fact to conclusively determine which opinion it will accept as the more persuasive. The trier of fact should examine, in making this determination, the medical expert's awareness of the individual's symptoms and other relevant circumstances.
Even though Reber testified in November of 2009 that it was his opinion in May of 2008 that Lehr could safety perform her job duties at that time, it is clear, given his medical reports from that time period, that he was not aware of the diabetes symptoms Lehr had been experiencing at work in late 2007/early 2008, before she began her 2008 medical leave for back surgery. Consequently, his opinion at that time was based upon inaccuracies. In fact, his opinion in November of 2009 conflicts with his statement in April of 2009 that Lehr had poor hypoglycemic awareness.
Consequently, the IME's opinion was the more persuasive during the period of Lehr's leave. Not only was it based upon his review of Lehr's extensive medical records; upon an accurate accounting of Lehr's low blood sugar episodes at work in late 2007/early 2008, even after her insulin prescription had been modified; but also upon the continuing indication from Lehr's treating physicians that she was hypoglycemically unaware.
In analyzing a discrimination case under the WFEA, the focus is upon the date or time period of the adverse action. Here, that would be the period of Lehr's leave. During that entire period of time, the medical evidence provided by the IME, given that it was more well-informed and complete, was more persuasive than that provided by Dimaggio or Reber. Consequently, SA did not engage in disability discrimination in placing and continuing Lehr on leave.
The majority's holding that, because Reber's opinion that complainant was fit for duty in May of 2008 was accepted by SA on the first day of hearing in October of 2009, the Salvation Army consequently engaged in disability discrimination during the period of Lehr's leave, leads to an absurd and unjust result. The focus has to be on the information in existence during the period of the adverse action, and to retroactively hold the Salvation Army liable for discrimination based upon information not extant until the relevant time period had elapsed runs counter to the tenets of common sense and justice underlying the WFEA.
As a result, I would affirm the ALJ's holding that respondent Salvation Army did not discriminate against complainant Lehr on the basis of disability as alleged, based upon the rationale set forth above.
/s/ Laurie R. McCallum, Commissioner
cc:
Attorney Tamara Packard
Attorney Eric Hobbs
Attorney Kelly Rourke
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